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July 27, 2011

Re:    Supreme Court Decision on Civil Service "Rule of Three"
          Towns must provide a legitimate explanatory statement of reasons

Dear Mayor:

The New Jersey Supreme Court recently issued a decision affecting Civil Service municipalities  regarding the statement of reason requirements for a legitimate bypass pursuant to the Rule of Three under N.J.A.C. 4A:4-4.8(b)(4).   The Rule of Three gives the appointing authority the discretion to bypass a higher-ranking candidate for a lower-ranking candidate “for any legitimate reason based upon the candidate’s merit.”  See N.J.A.C. 4A:4-4.8(a)(3); see also In re Hruska, 375 N.J. Super. 202, 210 (App. Div. 2005).  The Supreme Court’s decision In re Foglio, holds that the appointing authority who chooses to bypass a higher-ranking candidate on a competitive civil service examination must provide a legitimate explanatory statement of reasons.  In re Foglio, No. 066482, 2011 WL 2811375 (N.J. July 19, 2011).

The City of Ocean City sought to fill three vacant firefighter positions with evaluated candidates who were certified by the Civil Service Commission and ranked according to their scores on a competitive examination.  Nicholas Foglio ranked second highest on the list, was licensed by the state as an emergency medical technician, and was the only eligible candidate with fire fighting and rescue training.  Despite Foglio’s qualifications, the City bypassed him for other eligible candidates who ranked first, third, and fourth on the examination.   Pursuant to the Rule of Three, the City submitted a report to the Department of Personnel, reasoning that it bypassed Foglio because the lower-ranked individuals “best meets the needs of [the] Department.”  Foglio challenged the sufficiency of the reason and the Commission found that the bypass was proper because there was no evidence of discrimination.  Foglio appealed and the Appellate Division affirmed the Commission’s decision, holding that a candidate can be bypassed for any legitimate reason in the absence of discrimination.  In re Foglio, No. 2008-2434, 2010 WL 2557422 (N.J. App. Div. June 24, 2010).

The issue brought before the Supreme Court was whether the City’s statement of reason was adequate.  The Supreme Court held that the City’s statement of reason of “best meets needs of Department” was boilerplate language that did not clearly reveal why the candidate was bypassed, and therefore did not adequately comply with the requirements of N.J.A.C. 4A:4-4.8(b)(4).  The Supreme Court’s decision does not remove the appointing authority’s discretion to apply the Rule of Three, but simply clarifies the explanatory language standard of the required statement of reasons.  In re Foglio, at *6.  Boilerplate, conclusory language does not properly reveal why a candidate was bypassed.  Instead, the report should address the specific reasons for the bypass (i.e. better interview performance, educational degrees, or valuable employment history).  The Court went on to explain that it is not necessary to give a "lengthy or multifaceted [reasoning] to pass muster," but the statement cannot be conclusory without supporting explanations.

In order to determine whether the appointing authority’s statement of reasons is sufficient, it is helpful to understand that the purpose of such a requirement is to ensure the appointment process is not arbitrary and the principles of merit and fitness are preserved.  A proper statement of reasons should make clear that these principles were upheld and the appointing authority was properly justified in making its decision. 

Based upon the Supreme Court’s decision in Foglio, an appointing body still retains the discretion to bypass a candidate that ranked higher on a civil service examination, but must ensure that the statement of reasons provides legitimate explanatory reasons that justifies the bypass instead of mere conclusory statements. 

We urge you to discuss the impact of this decision with your labor attorney and personnel professionals.  If you have any questions, please do not hesitate to contact League Staff Attorney Matthew Weng at 609-695-3481 ext 137, or at

Very truly yours,


William G. Dressel, Jr.
Executive Director




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